In re Standard Jury Instructions in Criminal Cases—Report No. 2014–07, SC14–2035.

Decision Date30 April 2015
Docket NumberNo. SC14–2035.,SC14–2035.
Citation163 So.3d 478 (Mem)
PartiesIn re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2014–07.
CourtFlorida Supreme Court

163 So.3d 478 (Mem)

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2014–07.

No. SC14–2035.

Supreme Court of Florida.

April 30, 2015.


Judge Jerri Lynn Collins, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Sanford, FL; and Bart Neil Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the

163 So.3d 479

amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following existing standard criminal jury instructions: 3.8(b) (Conviction of Certain Crimes as Impeachment); 11.7 (Unlawful Sexual Activity with Certain Minors); 11.10(a) (Lewd or Lascivious Battery (Engaging in Sexual Activity)); 11.10(b) (Lewd or Lascivious Battery (Encouraging, Forcing or Enticing)); 11.10(c) (Lewd or Lascivious Molestation); 11.10(d) (Lewd or Lascivious Conduct); 11.10(e) (Lewd or Lascivious Exhibition Presence of Child); 11.11 (Lewd or Lascivious Offenses Committed Upon or in the Presence of an Elderly Person or Disabled Person); 11.13 (Voyeurism); 11.17(a) (Soliciting a [Child] [Person Believed by the Defendant to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices); 11.17(b) (Soliciting a Parent, Legal Guardian, or Custodian of a Child for Unlawful Sexual Conduct Using Computer Services or Devices); 11.17(c) (Traveling to Meet a Minor); and 11.17(d) (Traveling to Meet a Minor Facilitated by Parent, Legal Guardian, or Custodian). The Committee also proposes the following new jury instructions: 11.20 (Transmission of Child Pornography by Electronic Device or Equipment); 11.21 (Transmission of Material Harmful to Minors by Electronic Device or Equipment); and 15.5 (Resisting Recovery of Stolen Property). The Committee published its proposals in The Florida Bar News . Three comments were received by the Committee. The Court did not publish the proposals after they were filed.

Having considered the Committee's report and the comments submitted to the Committee, with the exception discussed below, we amend the standard jury instructions as proposed by the Committee and authorize them for publication and use.

With respect to jury instruction 11.17(c) (Traveling to Meet a Minor) and instruction 11.17(d) (Traveling to Meet a Minor Facilitated by Parent, Legal Guardian, or Custodian), the Court at this time declines to authorize these instructions. Both instructions, as proposed, include language under the “Lesser Included Offenses” portion of the instructions that the courts may consider the crime of Solicitation under section 847.0135(3)(a) or (3)(b), Florida Statutes (2014), respectively, to be a necessary lesser-included offense of Traveling under section 847.0135(4)(a) or (4)(b), respectively. However, in State v. Shelley, Case No. SC14–755, the Court is currently considering whether, for purposes of double jeopardy, a defendant may be punished both for soliciting a person believed to be a parent to consent to unlawful sexual activity with a child and for traveling to meet the minor after soliciting the person believed to be a parent. Until this issue is resolved, we decline to authorize the proposed amendments to instructions 11.17(c) and 11.17(d) for publication and use.

The new and amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use.1 New language is indicated by underlining, and deleted language is indicated by struck-through type.

163 So.3d 480

In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

3.8(b) CONVICTION OF CERTAIN CRIMES

AS IMPEACHMENT

§§ 90.107, 90.610(1), Fla.Stat.

To be given at the time the evidence is admitted, if requested.

The evidence that you are about to receive that [ (witness) ] [ (defendant) ] has been convicted of (crime) should be considered by you only in weighing the credibility of [ (witness's) ] [ (defendant's) ] testimony and not for any other purpose.

Comment

This instruction was adopted in July 1995.

11.7 UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS

§ 794.05, Fla.—Stat.

To prove the crime of Sexual Activity with a Minor, the State must prove the following three elements beyond a reasonable doubt:

Give 1a and/or 1b depending on the allegations and the evidence.

1. (Victim) was 16 or 17 years of age.
a. (Defendant) committed an act with (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of the[ (victim) ] [ (defendant) ].
b. (Defendant) committed an act with (victim) in which the [anus] [vagina] of [ (victim) ] [ (defendant) ] was penetrated by an object. The definition of “an object” includes a finger.
2.At the time, (Ddefendant) was 24 years of age or older.
3. At the time, (victim) was 16 or 17 years of age. (Defendant) engaged in sexual activity with a minor in which the sexual organ of the[ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ].]

Give if applicable.

Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013) .

The definition of “an object” includes a finger.

Give if applicable.

§ 794.05(1), Fla. Stat.

Sexual activity does not include an act done for a bona fide medical purpose.

Give if requested. § 794.05(3), Fla. Stat.

163 So.3d 481

(Victim's) lack of chastity is not a defense to the crime charged.

Give if requested. Feliciano v. State, 937 So.2d 818 (Fla. 1st DCA 2006) ; § 794.021, Fla. Stat.

The defendant's ignorance of (victim's) age, (victim's) misrepresentation of his or her age, or the defendant's bona fide belief of (victim's) age is not a defense to the crime charged.

§ 775.0862, Fla. Stat.

Enhancement for sexual offense against student by school authority figure.

If you find that (defendant) committed the crime of Sexual Activity With a Minor, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“School” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term “school” does...

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